Black and brown people, their loved ones, and those without the economic resources to thrive suffer the worst harms. But he felt powerless. Take a position: What would a just (fair) pretrial bail system include (or exclude). The U.S. system, borrowed from Englands, has been through three waves of reform as authorities sought to balance equal justice and public safety. Essie Justice Group, a nonprofit organization of women with incarcerated loved ones, helped create and supported a previous version of the bill, but opposed the version that was passed. They argue that such tools can help courts better achieve the goal of reducing pretrial detention, without a rise in failures to appear in court or risk to public safety. Across the country, people are recognizing that overreliance on cash bail doesnt work, and its ruining lives. What Im saying is these methods actually make them worse., Criminal history, Harcourt said, is a reflection of how often someone has been caught breaking the law. Our reliance on bail has essentially created a two-tiered justice system in the US. This is a critical moment for advocates to capitalize on the momentum surrounding pretrial justice and bail reform. As this week's discussion has highlighted, there are many flaws in the pretrial bail system as roughly $14 billion dollars annually is spent on the pretrial detention of individuals who have not even been convicted of charges against them (Pretrial Justice Institute, 2018). Stephanie Wykstra (@swykstr) is a freelance writer and researcher based in New York. Whats going on? Some say thats unfair. Its just not safe., Its so sad, the whole thing, Toovey said. By adopting a tool, some argue, judges will have additional information to guide them on who to release into the community versus who to hold in jail pretrial. Theres a rising movement to fight the money bail system. The judge has a few different options. As it turns out, a charge of gun possession doesnt raise a defendants PSA risk score. Another major concern is that the tools are biased against people of color. They pointed out that there have always been people who commit crimes after being released from jail. From an unexpected hurricane and deadly wildfires to migrants flocking to the U.S. border, 2018 was full of big stories with powerful images to accompany them. Still, it is the best alternative anyones come up with. Bondsmen and bounty hunters say they provide an essential service, and help make sure that defendants show up for their court dates and pay the price if they dont. Just ask Bruna Toovey3. The results are then entered automatically into a decision-making framework, written by Arnold with customizations by New Jersey, that produces a recommendation of whether the defendant should be released, and, if so, what conditions should apply. Some states, including Massachusetts, have passed statutes requiring that courts inquire into ability to pay money bail, and others, including Alaska and Illinois, have put restrictions on the cases in which people can be assigned money bail or encouraged courts to use unsecured bail (only payable if the person fails to appear in court). But plea deals enable Americas already overwhelmed courts to function. The bail bond business does help some people get out of jail but its also led to ruthless business practices. A court system just (fair) pretrial bail system would include bail release which means that a person pays moneyto be released from jail before trial but must appear at every court date that is assigned to the individual to get their money back. The new system driven by years of research involving hundreds of thousands of cases and requiring multimillion-dollar technology upgrades and the hiring of more judges, prosecutors and court workers still produces contentious decisions about who deserves freedom and who does not. Include three to five ideas, and a rationale to support your post. The number of people behind bars in the United States has jumped more than threefold, to 2.1 million, since 1980, according to the Bureau of Justice Statistics. The tactic has been backed up by research: a study released in 2018 found that designing clearer summons forms led to a 13 percent decrease in the failure to appear in court; text message reminders reduced it an additional 26 percent. Even with the recent tweaks, results can seem inconsistent. But prosecutors think hes too dangerous. This Minority Report approach guts the presumption of innocence, says Steinberg. In at least two cases, people have been killed by men whod been released on earlier charges. Pre-trial detention undermines the chance of a fair trial and the rule of law. Nonprofits including Civil Rights Corps, Equal Justice Under Law, the ACLU, and the Southern Poverty Law Center have lodged dozens of lawsuits challenging the practice in many states, including Texas, Alabama, Illinois, and California. What would a just (fair) pretrial bail system include (or exclude). Include three to five ideas, and a rationale to support your post. However, after years in jail, much of it in solitary confinement, Browder had trouble readjusting to his old life. Philanthropic organizations are funding projects in more than three-dozen states to eliminate bail and adopt algorithm-based risk-assessment tools. There are a variety of such tools available, including the Public Safety Assessment tool developed by the Arnold Foundation and the COMPAS tool developed by the for-profit company Equivant (formerly Northpointe). It's also the only pretrial risk assessment that flags defendants who present an elevated risk of committing a violent crime if released. Paul Gessing, President of the Rio Grande Foundation, and Emily Kaltenbach, New Mexico State Director for the Drug Policy Alliance, discuss the benefits of pretrial risk assessments. The PSA, built from an analysis of 750,000 criminal cases across the country, reduces risk factors to a defendants age, criminal past, history of skipping court and whether the pending charge is violent. The disparity and discrimination I saw based on race and socioeconomic status outraged me and fueled my desire to dedicate the rest of my life to changing that, she said. (Washington, DC, also did away with incarceration as a result of money bail, back in 1992.) For instance, if we abolish money bail, will judges and prosecutors seek increased authority to jail people outright pending trial? A woman with high risk scores who is charged with assault gets released while prosecutors seek detention for a man with lower scores and drug charges. A judge agreed, and ordered him to stay behind bars. If you get arrested, a judge takes a look at your charge and has to make a decision about what to do with you until your court date. Kentucky, Arizona and more than two dozen local, jurisdictions are using the PSA, but none to the. Clarification(Aug. 22, 2017 9:50p.m. Create a wide net of people eligible for mandatory and presumptive pre-booking release on no conditions. Facilitate speedy individualized release hearings distinct from detention hearings with necessary due process protections. Heres a riddle for you. The bail bond industry, facing extinction, has backed two federal lawsuits seeking to end the algorithms use. What comes next? District attorneys have enormous discretion in the cases they decide they will pursue and the charges they bring, as well as in whether they ask the judge to set bail in a particular case. A just pretrial bail system includes: Pretrial arrest and release decisions basing on risk aimed at encouraging releasing suspects, court appearance and ensuring public safety. The reason I came to bail reform was seeing clients plead guilty to stuff they couldnt prove, just to take probation and get out of jail, said Alex Shalom, a former public defender who now leads bail reform efforts at the American Civil Liberties Union of New Jersey. Between 1990 and 2009, releases in which courts used money bail in felony cases rose from 37 percent to 61 percent. Theres a lot of momentum around bail reform that advocates believe will translate into further big policy shifts in the coming years. The idea of putting people in jail isnt that the fking point of not committing a crime? McCallen said. For many years, McCallen made a good living chasing down absconders, or skips. But that business evaporated. If a person is arrested, they should proceed to a hearing within 24 hours at which a judge can only impose conditions on her release, not order them jailed. These were hard-fought ideals, but it takes all of us to ensure theyre not just empty words on a page or privileges for the few.. People then need to receive a hearing, with public defenders available. Bail should be set based on the charges brought forward. Given these realities, we have prioritized diverting as many people as possible from jails in the first place. However, research suggests that using awell-designed pretrial risk assessment such as the PSAin concert with judicial discretionproduces better overall outcomes than decisions based on bail schedules alone. More than 50 years later, Kennedys words ring truer than ever. Others that began using it in 2017 include Harris County, Texas, and Cleveland, Ohio. Its inappropriate not to use the data thats available to us to improve our decision-making, she says. The PSA measures probabilitiesno risk assessment can predict human behavior with 100 percent accuracy. Read more about her work at KateTorgovnickMay.com. The most common form is surety bail bond, by which a person pays not the full amount but a fee often around 10 percent of the bail amount to a commercial bail agent. In July 2014, he testified before the state Senates Law and Public Safety Committee, and a month later the new system became law, with a January 2017 start date. In these cases, money bail effectively detains people without giving them the rights they could have if they underwent a formal detention hearing. But what if hed been released? Although individuals charged with crimes are considered innocent until proven guilty, many are held in jail while awaiting their day in court simply because they cannot afford to make bail. And it remains unclear whether the new approach will reduce racial disparities, drive down crime rates or be fiscally sustainable. It was the second time in less than two months that Tooveys place had been ransacked, and it turned out that the same man did it. But in several of those instances, prosecutors did not ask for the defendants to be detained. States like New York that considered but did not pass legislation to get rid of money bail (or much reduce it) this past year may well be able to do so in coming years. The PSA also assigns more value to a persons history of skipping court before their cases have been adjudicated. A 2014 report on the bail industry by the state Commission of Investigation outlined a litany of abuses, including cutting deals with hardened criminals who went on to commit more violent crimes. Module 3 Discussion o The United States need to reconsider their stance on cash bails as it directly effects individuals within the low-income minority. In your responses to peers, extend the ideas in their original posts to include nonmonetary release options by proposing alternatives, suggesting changes, or supporting the ideas presented. Willis, who is 31, spent nearly four months in the summer of 2010 in jail on a gun possession charge that prosecutors dismissed after he tracked down a videotape that he said showed Newark officers planting the weapon. In July, a team of Republican and Democratic U.S. senators introduced a billthat would encourage more states to replace money bail with risk assessment tools. In Wisconsin, a man sentenced to prison based on the result of an algorithm argued that his inability to challenge the secret formula violated his due-process rights; the state Supreme Court ruled against him, and the U.S. Supreme Court declined in June to hear the case, allowing the state ruling to stand. In the several years following the federal reform of the pretrial and bail system, many states made sweeping reforms of their own system. It is early June, and he has been arrested for driving a car with a gun locked in the glove compartment. They are used at various points of the criminal justice system, from pretrial to sentencing to parole. It happened to Mustafa Willis1 seven years ago. This was the basis for one of the major objections to the new California legislation from groups such as the ACLU: The bill states that many of those accused of misdemeanors will be released, but specifies a rebuttable presumption of detention for a wide range of non-misdemeanor charges. By then, Willis had lost his job, making it hard to repay the bondsman. If the judge goes against the automated recommendation, the judge has to explain why. But why would an innocent person do that? The trend away from money bail the payment required for a person to be released from jail as they await court hearings is a welcome development. District attorneys are running progressive campaigns all over the country. They might be going back to their job.. The bald inequity of this system has triggered a national movement to eliminate bail altogether. Willis, 24 at the time, was given a $50,000 bond, meaning that he would have to pay 10 percent, or $5,000, to secure his release. In 2014, then-Attorney General Eric Holder warned against relying on data-based prediction methods to determine jail time, saying they could inadvertently undermine justice by focusing on factors outside of a defendants control. Kamala Harris (D-CA) and Rand Paul (R-KY), which include federal support for states in their bail reform efforts. A pair of San Francisco brothers, Peter and Thomas McDonough, are credited with taking it to the next level. For example, recent analysis of bail decisions in New York City from FiveThirtyEight shows that the chance of being assigned cash bail varies wildly between 2 and 26 percent for misdemeanors, and 30 to 69 percent for felonies depending on which judge happens to be overseeing a court on a given day. We envision a country in which pretrial incarceration is all but eliminated, with at least 95 percent of all people in the criminal legal system released no later than 48 hours after arrest. They acknowledge that poorly crafted tools can perpetuate bias, a problem that can be overcome through rigorous testing. These suits have led to some major victories, including a 2017 ruling from a federal judge who found that the money bail system in Harris County, Texas, was unconstitutional. So far, risk assessment tools have been adopted by several states, including New Jersey, Arizona, and Kentucky, as well as by dozens of local jurisdictions across the country. Even a day in jail causes tremendous harm and negates, rather than promotes, the purposes underlying our bail system. The strategies vary, but the goal is the same: improve public safety and reverse an unprecedented growth in incarceration rates. That effort coincided with a growing movement, sparked by the shooting death of Michael Brown in Ferguson, Missouri and the post-jail suicide of Kalief Browderin New York, that focused the nation on the harms of fines, fees and bailin state and local courts. Representative Ayanna Pressley from Massachusetts stated "One of my priorities is criminal justice reform, and there is certainly bipartisan support for that" (Oakes & Fleming, 2018). We cant undo the long and troubled history of the US bail system. Many are held due to lack of alternatives or because they cannot afford to pay a bail fee. Her interest began as a probation and parole officer, when she saw large numbers of people with jobs, families and no criminal records stuck behind bars because they couldnt afford bail. Fewer than 2 percent of our clients have ever received a jail sentence of any kind, says Steinberg. However, it is critical to remain steadfast in our vision as we approach system change. Browder refused to plead guilty, and his case was finally dropped by the prosecution, who sent him home. In 10 years, the Fund has bailed out more than 2,000 people: of them, nearly 60 percent had their cases dismissed outright, and most of the remaining 40 percent had their charges reduced to violations. Because people of color have been disproportionately targeted by police, this argument goes, criminal history data will also skew accordingly and in turn skew risk assessment results. Sign up for the Future Perfect newsletter. Theres also a risk that in lieu of money bail, courts might start to assign a high number of people to unnecessarily onerous forms of supervision, such as electronic monitoring, which advocates argue can be nearly as punitive as being in jail. Of those people, 88 percent returned for all court appearances last year, and only 2 percent were arrested for a violent crime as they awaited court hearings. This is a critical moment for advocates to capitalize on the momentum surrounding pretrial justice and bail reform. This is what the new vision of American justice looks like. First, I believe race should never be a factor in determining what a person's bail should be. Our Criminal Justice team is tracking PSA use and has commissioned studies by respected, independent research organizations to evaluate the risk assessment. Hundreds of thousands of legally innocent people languish in jails on any given day simply because they cant afford bail. Critics argue that even the most basic factors, such as someones criminal history, can exacerbate discriminatory treatment, because that history can be profoundly affected by race, class, neighborhood and the ability to afford a lawyer. Judges can consider the risk scores and any violence flag, but still retain all of their authority and discretion when making pretrial decisions. I don't think that someone who is being charged with crimes that are violent like murder or rape should have a bail. America has struggled with the fairness of pretrial detention since the earliest days of the republic, when the protection against excessive bail was written into the Eighth Amendment of the Constitution. Design & Development EJ Fox, Brad Oyler & Ian Rose. As people await court hearings behind bars, sometimes for months or even years, they suffer from inadequate medical care and even dangerous conditions, and many lose their jobs and housing. In large urban areas, Black felony defendants are over 25% more likely than white defendants to be held pretrial. We use cookies and other tracking technologies to improve your browsing experience on our site, show personalized content and targeted ads, analyze site traffic, and understand where our audiences come from. After prosecutors saw the video, they dropped the charges. But because it ties freedom to the ability to pay, its been inherently flawed from the start. Lawmakers are the driving force in a handful of other states, including Illinois and California. But this risk is likely not that high. (The decision is being appealed.). They also have a higher chance of being convicted than if they hadnt been assigned bail, as they take plea bargains just to get out of jail, whether or not they actually committed a crime. Given the presumption of innocence and the fundamental right to liberty, everyone will be presumed to be released with no conditions, regardless of what they are accused of. Since then, commercial bail bonds have spread, becoming a $2 billion a year industry in the US. At the same time, the wealthy can buy their way out of pretrial detention on just about any offense, including murder. We are committed to supporting ongoing research on the PSA and intend to expand access to more jurisdictions in the future. Rather than cash bail, the state is giving judges the broad discretion to detain people and using algorithm-based risk assessments to determine if people should be held with no hope of being released at all. Only then did a judge agree to detain him. The use of money bail is one of the most troubling features of our deeply unequal justice system. On any given day, nearly half a million people languish in jail cells across America, waiting for their criminal cases to . When the new law goes into effect in 2019, people arrested and charged for a crime in California will no longer be asked to post bail as a condition of their release. Police officers told Toovey all about it. Im a good person. A similar scenario unfolded in June, when a man awaiting trial on charges he threatened his ex-girlfriend shot her to death outside his Newark home, then killed himself, authorities said. Rising crime rates in the 1970s and 1980s fueled a second round of changes aimed at keeping dangerous defendants off the streets: judges were required to consider a persons risk of committing a crime while out on bail. In . One, prompted by the outcry against the release of a man accused of soliciting sex from a girl, led to an appellate court ruling on the handling of sex offenders and defendants juvenile histories. The biggest loser in all of this, by far, is the bail bond industry. Another kind of money bail is cash bail, which is money paid to the court and returned often minus a court fee once the person returns for all court hearings. Its been touted as a victory for bail reform, but in a rush to rethink a broken system, Steinberg warns that California has replaced it with something worse. It has changed, because now the system isnt about poverty. We also demand adequate and robust protections for people going through the system and that for-profit actors be removed from this pretrial space. Advocates have also sought to push for reform in another venue: state legislatures. Among many other significant changes to pretrial policy and practice in the state, judges are now able to consider the Public Safety Assessment (PSA), apretrial risk assessment developed by our team in partnership with leading criminal justice researchers. However, many other advocates have spoken out against such risk assessment instruments. Defense attorneys, meanwhile, warn that the new system could give rise to a new type of injustice: prosecutors using detention motions as cudgels to obtain guilty pleas. But proponents argue that they are at least an improvement over the current state of affairs.
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